A musical jam on the scales of justice - Cara McGlynn

Earlier this month Ed Sheeran won a High Court battle over his 2017 hit, Shape of You, in a ruling which could impact future copyright infringement claims in the UK.

Grime artist Sami Switch, whose real name is Sami Chokri, claimed the ‘Oh I’ hook in the Sheeran song was "strikingly similar" to the refrain in his track, Oh Why. Overruling this claim, Judge Antony Zacaroli acknowledged there were similarities between the one-bar phrase in the two songs but made clear that this only marked a “starting point for a possible infringement" of copyright. After analysing other musical elements, he concluded that Sheeran’s song did not originate from Chokri’s tune.

Following the judgement, Ed Sheeran hit out over what he called the “baseless claims” of copyright infringement saying they were becoming “way too common" and risked causing damage to the songwriting industry. This case came about after Sheeran took the unusual step of pre-emptively seeking a declarator of non-infringement from the court in an attempt to clear his name after Sami Chokri and Oh Why co-writer Ross O'Donoghue accused him of copying part of their work.

The case puts the spotlight firmly on UK copyright law, which is governed by the Copyright Designs and Patents Act 1988. This was enshrined to protect the expression of original, creative works, including music, to give the authors of such works the right to control its use and commercial exploitation. Unlike trademarks, patents and designs, copyright protection arises automatically on the creation of a relevant work and does not need to be registered.

Ed Sheeran performs during The BRIT Awards 2022 at The O2 Arena in London. (Photo by Gareth Cattermole/Getty Images )

Music copyright can involve a number of elements including lyrics, specific sounds used within a song (exclusive of its words), and the recording of a piece of work. Infringement occurs if a piece of work is copied and issued to the public without the right-holders’ consent. This is what was claimed against Sheeran in releasing ‘Shape of You’, which remains the most-streamed song of all time on Spotify, with more than three billion plays.

If a copyright-protected work is copied in its entirety, it will be a clear case of infringement. If it’s only been part copied, then the question revolves around how substantial the level of copying has been.

To establish whether there has been copying of a substantial part, the part of the copyright work which was duplicated and the quality of the originality which earned the work copyright protection had to be considered. As in all UK copyright infringement proceedings, the judgement in this case was therefore based on a qualitative rather than a quantitative assessment.

Chokri and O’Donoghue unsuccessfully pursued their case on the basis that Sheeran had infringed the copyright of the sound of part of their song rather than its precise musical notes. Primary infringement of copyright is a so-called strict liability offence, meaning it does not matter whether or not there was any knowledge or intention to infringe. The judge held that there had been neither deliberate nor subconscious copying.

While there was found to be similarities between the ‘Oh I’ refrain hook in Sheeran’s song and the chorus of Chokri’s Oh Why, it was held that there were also significant differences. In his post-trial statement, Sheeran also pointed out that while similarities may exist between songs, it doesn’t necessarily amount to copyright infringement. The singer highlighted the 22 million songs released on Spotify each year, all written with “only 12 notes that are available."

This case follows Katy Perry’s recent successful defence of a US copyright infringement lawsuit. The singer had been accused of plagiarising an eight-note ostinato in her song Dark Horse, but on appeal it was held those pursuing the case were trying to claim an “improper monopoly” over standard musical sequences and scales.

Music copyright infringement litigation has been on the rise in the UK but the Sheeran case could make parties think carefully before pursuing a claim. We will also watch with interest as to whether we will soon see such cases before the Scottish Court of Session which deals with intellectual property disputes.

Cara McGlynn is an Associate in the Technology, Intellectual Property and Media team at CMS